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3D printing used to be an expensive product design tool, but it is quickly becoming an affordable and accessible technology. First emerging in the 1980s, the availability of low-cost, high-performance 3D printers has put the technology firmly within reach of consumers. While this provides a number of opportunities for designers and manufacturers, there is also concern around the impact on IP rights.

How Does 3D Printing Work?

Jia Li

The 3D printing process starts with a digital file. The file is then exported to a 3D printer using dedicated software, transforming the digital model into a physical object through a process where molten material is built up layer upon layer until the finished object emerges.

Developing and improving 3D printing technology – and printers – is of major interest to innovators. Research from Russell Slifer, Deputy Secretary of Commerce for Intellectual Property and Director of the USPTO, found patent filings relating to 3D printing have increased 23-fold over the last five years, and trademark filings for businesses involved in 3D printing have increased 300% during the same time. How can this impact IP rights?

Protecting IP assets

3D printing technology makes it easy to copy and reproduce products – even if they are protected by a patent, trademark or copyright. It is as simple as downloading a computer-aided design (CAD) file, which can instruct the printer to reproduce a 3D object. CAD files are digital, meaning they can be shared across the internet, just like movies and music.

The commercialisation of 3D printing – with an increase in small scale manufacturers – makes policing IP complex. Each printed copy of an invention represents the loss of a potential sale to its patent holder. As the manufacturer is ultimately the end user, it is harder to prove infringement. To sue, the patent owner would need to be aware that a manufacturer is using a 3D printer to reproduce their patented invention – a tall order given that 3D printers are increasingly common in households and small businesses.

An IP Defence

Intellectual property is likely to weigh more heavily on ideas and designs, rather than implementation methods. IP owners need to establish a robust portfolio of copyrightable files – such as design files – and idea maps that are essential to the products that they are trying to protect. These files will serve as proof of an owners’ pre-established rights, and could prove to be a significant source of profit in the future. And while copyrights are susceptible to fair use claims in a way patents are not, copyrights last for an extremely long time (e.g. 70 years beyond the death of the author).

There is often no retrievable evidence of manufacturing or sales following the 3D printing of copied items. However, even if evidence of infringement was available, suing numerous infringers would be expensive.

Alternatively, patent owners could target the people facilitating the infringement. The Patent Act permits a patent holder to sue parties who induce others to infringe. For example, potential inducers of patent infringement could be the sellers of the 3D printers, someone providing CAD files of the patented product, or websites that sell or share the CAD files that instruct 3D printers to make the patented invention.

3D Printing in the Future of IP

As an industry still in its infancy, prosecuting cases of IP infringement in 3D printing is proving complex. However, digitalisation has impacted a number of other sectors. Lessons around digital file sharing – including CAD files – can be learnt from the piracy that overwhelmed the entertainment industry in the 1990s.

However, 3D printing issues stretch further than the illegal downloading of music or unofficial film and TV merchandise. With a 3D printer anyone can pirate design files and turn the files into tangible objects without owning the IP.

This may mean that in the future copyright could merge with patent rights – or at the very least overlap with it – as it has become much easier to transform between tangible and intangible forms of products and ideas. Before IP law is revised to reflect this change, it is important for innovators to seek copyright protection in addition to patent protection for a new product.

IP owners should also consider 3D printing techniques in future patent applications. If it is foreseeable to use 3D printing to manufacture a product, it would be beneficial to have patent claims that protect a 3D printing method for the product.

The Good with the Bad

Despite the legislative difficulties surrounding 3D printing, IP owners should also consider the opportunities afforded by the technology. In the pharmaceutical industry, drug research and development (R&D) can be drastically improved by 3D printing and the technology could even be used to print human organs and tissue. This would allow companies to test drugs cheaply without compromising safety and reduce outgoing development costs. Because of improved target selection, preclinical tests, clinical trials, chemical synthesis, and product management – research should become more efficient.

Take the recent decision by the US Food and Drug Administration (FDA) to approve SPRITAM – an anti-epilepsy medication. SPRITAM employs 3D printing methods to produce its “porous formulation that rapidly disintegrates with a sip of liquid.” Thought to be the first 3D-printed pharmaceutical on the American market, SPRITAM allows epileptic patients with swallowing difficulties to medicate themselves.

It is important that IP owners see 3D printing as not only a threat but a revenue opportunity. As technology evolves, 3D printing will not be the last innovative trend to disrupt the future of IP. Efficient management of IP will become increasingly important to maintain reputation and IP ownership. The history of infringement in the film and music industry does not need to repeat itself. The key to moving forward successfully with 3D printing is to look at the opportunity to lead businesses into a new age of technology. Companies now have the opportunity to learn from what did not work in the past and apply other means of creating new income streams to help develop the future of IP and 3D printing.

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